Revised: October, 2022 These Terms of Service (“Terms”) govern your use of the XFERALL, LLC website (“Site”) and any XFERALL, LLC mobile application, application programming interfaces, and other services offered by XFERALL, LLC, as well as services offered through third parties integrating XFERALL, LLC functionality (“Services”). XFERALL, LLC (“we” or “us”) provides the Site and Services. “You” refers to you as a user of the Site or Services. BY USING THE SITE OR SERVICES, YOU ARE AGREEING TO THESE TERMS. PLEASE READ THEM CAREFULLY.
1. Acceptable Use of the Site and ServicesYou are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account. Our goal is to facilitate safe, secure, efficient patient transfers for the receipt of medical services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to patients or to us. When you use the Site or Services, you may not:
•violate any law or regulation;
•violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, orother legal rights;
•upload or share anything that is illegal, abusive, harassing, harmful to reputation,pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
•send unsolicited or unauthorized advertising or commercial communications, such as spam;
•engage in spidering or harvesting, or participate in the use of software, including spyware,designed to collect data from the Site or Services;
•transmit any viruses or other computer instructions or technological means whose purpose isto disrupt, damage, or interfere with the use of computers or related systems;
•facilitate inappropriate or discriminatory patient transfers in violation of the EmergencyMedical Treatment and Active Labor Act (“EMTALA”);
•impersonate any person or entity or perform any other similar fraudulent activity, such asphishing;
•use any means to scrape or crawl any Web pages contained in the Site;
•attempt to circumvent any technological measure implemented by us or any of our providersor any other third party to protect the Site or Services;
•attempt to decipher, decompile, disassemble, or reverse engineer any of the software orother underlying code used to provide the Site or Services;
•advocate, encourage, or assist any third party in doing any of the foregoing; or
access the Services for use outside of the United States of America.
2. Medical Judgement and EMTALA. You acknowledge and understand that the Site and the Services are not intended to and will not substitute for proper clinical judgement. You further acknowledge that the Services may be utilized to accept patient transfers under the Emergency Medical Treatment and Active Labor Act (“EMTALA”). Nothing contained herein shall be interpreted to alter the duties of the treating physician, the transferring facility, or the receiving facility under EMTALA. XFERALL makes no representations with respect to the appropriateness of transfers made through the Services. The Site and the Services provide for the electronic request of patient transfers to participating facilities. Non-participating facilities are identified to you by the Site and if more appropriate, should be contacted for patient transfer, despite the inability to effectuate the transfer through the Site and the Services.
3. Additional Terms
Some of our Services have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using that Service, you agree to the Additional Terms.
4. User Content
When you upload, submit, store, send, or receive User Content to or through the Site or Services, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Services), perform, display, and distribute your User Content to your selected receiving facilities, and to use the User Content for our internal management and administration, or otherwise as required or permitted by law. This license is for the limited purpose of operating, promoting, and improving the Site and Services, and to develop new Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Site and Services.
You promise that:
• you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and
• your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
We may refuse to accept or transmit User Content for any reason. -3-
8. Changes to the Site or Services
We enhance and update the Site and Services often. Any upgrades requiring action by you will be sent via push notifications. You hereby agree to take timely action to accept such upgrades. We may change or discontinue the Site or Services at any time.
We reserve the right to not provide the Site or Services to any person. We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion.
10. Disclaimer and Limitations on Our Liability
THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
IN PARTICULAR, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR SERVICES. OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF -4-
CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; OR (c) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES.
TO THE EXTENT PERMITTED BY LAW, OUR COMPANY AND ITS AFFILIATES WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
You agree to indemnify and hold harmless our company and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms by you or anyone using your account. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
12. Arbitration Agreement & Waiver of Certain Rights
You and XFERALL agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and XFERALL hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and XFERALL relating to these Terms or the Services (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or XFERALL from seeking action by federal, state, or local government agencies. You and XFERALL also have the right to bring qualifying claims in small claims court. In addition, you and XFERALL retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
Neither you nor XFERALL may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or XFERALL’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. -5-
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Terms. This Section of the Terms will survive the termination of your relationship with XFERALL.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR XFERALL WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
13. Other Provisions
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any conflict of laws rules or provisions.
You agree that any action of whatever nature arising from or relating to these Terms, the Site, or Services will be filed only in the state or federal courts located in Travis County, Texas. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
14. Changes to these Terms
From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Site. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use the Site or Services, you are agreeing to the revised Terms.
PLEASE CHECK THE SITE FREQUENTLY FOR ANY CHANGES TO THESE TERMS.
Terms of Service
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